K. P. Chandrasekharan Nair v. District Collector, Thiruvananthapuram and Deputy Collector (Land Acquisition), Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936 WP(C).No. 20452 of 2014 (F) ---------------------------- PETITIONER: ------------- K.P CHANDRASEKHARAN NAIR, AGED 75 YEARS S/O.LATE KRISHNAN NAIR, KAMALA NILAYAM, TPATTAM P.O, HIRUVANANTHAPURAM BY ADVS.SRI.R.NARENDRAN NAIR SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON SMT.K.N.ABHA GOVERNMENT PLEADER RESPONDENTS: ----------------- ## 1. THE DISTRICT COLLECTOR CIVIL STATION, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY COLLECTOR(LAND ACQUISITION), THIRUVANANTHAPURAM-695 001. BY G.P.SMT.SANJEETHA K.A. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20452 of 2014 (F) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- EXHIBIT P1: TRUE COPY OF THE RELEVANT PORTION OF THE AWARD IN LAC NO 33/2006 OF THE 2ND RESPONDENT IN RESPECT OF THE PETITIONER'SPROPERTY. - EXHIBIT P2: TRUE COPY OF THE ORDER DATED 30-01-2008 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P3: TRUE COPY OF THE APPLICATION DATED 28-03-2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P4: TRUE COPY OF THE ORDER DATED 11-04-2008 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P5: TRUE COPY OF THE APPLICATION DATED 30-01-2012 UNDER SECTION 28A FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P6: TRUE COPY OF THE LETTER DATED 12-07-2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P7: TRUE COPY OF THE LETTER DATED 7-08-2012 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P8: TRUE COPY OF THE LETTER DATED 17-04-2013 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P9: TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER WHILE PRODUCING THE CERTIFIED COPY OF THE COMMON JUDGMENT IN THE LAR CASES. - EXHIBIT P10: TRUE COPY OF THE CERTIFIED COPY OF THE COMMON JUDGMENT DATED 15-06-2011 OF THE SUB COURT THIRUVANANTHAPURAM IN LAR NOS. 27/2008 AND CONNETED CASES OBTAINED BY THE PETITIONER ON 23-11-2011. - EXHIBIT P11: TRUE COPY OF THE CERTIFIED COPY OF THE COMMON JUDGMENT DATED 15-06-2011 OF THE SUB COURT THIRUVANANTHAPURAM IN LAR NOS. 27/2008 AND CONNECTED CASES OBTAINED BY THE PETITIONER ON 11-10-2013 - EXHIBIT P12 TRUE COPY OF THE ORDER DATED 4-1-2014 ISSUED ON BEHALF OF THE 1ST RESPONDENT. RESPONDENT(S)' EXHIBITS: NIL - ---------------------------- // TRUE COPY // TKS P.S. TO JUDGE **“C.R.”** ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.20452 of 2014 ------------------------------Dated 13th August, 2014 ## **JUDGMENT** The petitioner was the absolute owner in possession of 5 cents of land comprised in Survey No.1748/4-2 of Kowdiar Village in Thiruvananthapuram Taluk. Out of the said extent, an extent of 00.26 Ares was acquired for the purpose of widening the Pattom - Kowdiar road. Admittedly, such acquisition was effected after resorting to the prescribed procedures under the Land Acquisition Act, 1894 (for short `the Act'). Ext.P1 award was passed in respect of the property acquired from the petitioner under Section 11 of the Act. Admittedly, the petitioner has not sought for a reference under Section 18 of the Act. Subsequently, the petitioner submitted Ext.P5 application under Section 28A of the Act seeking re-determination of the amount of compensation based on the award in LAR No.25 of 2008 and connected cases dated 15.6.2011 in respect of properties covered by the same notification. Along with Ext.P5 application dated 30.1.2012 the petitioner has produced a photocopy of the judgment in LAR.No.25 of 2008 and connected cases dated 15.6.2011. Later, the petitioner was required to produce the certified copy of the said award of the reference WP(C).No.20452/2014 2 court. The case of the petitioner is that the certified copy of the award viz., the common judgment in LAR No.25 of 2008 and connected cases obtained by him on 23.11.2011 was found missing and thereupon he submitted a fresh application dated 23.9.2013. On 11.10.2013 a certified copy was obtained and thereupon along with the affidavit it was produced before the first respondent on 15.10.2013. That application was ultimately rejected by the second respondent as per Ext.P12 dated 4.1.2014. It is aggrieved by Ext.P12 order that this writ petition has been filed seeking its quashment and for a declaration that the application under Section 28A of the Act submitted by the petitioner is bound to be decided on merits in the light of the common award of Sub Court, Thiruvananthapuram in LAR No.25 of 2008 and connected cases. The further prayer of the petitioner is for issuance of a writ of mandamus commanding the first respondent to consider and pass orders on Ext.P5 application filed by the petitioner under Section 28A of the Act, on merits. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader. WP(C).No.20452/2014 3 3. Relying on the decision of this Court in **Sahid** v. **District Collector (1997 (1) KLT 461)** the learned counsel for the petitioner submitted that merely because certified copy of the award relied on for seeking re-determination of compensation under Section 28A was not produced along with the application, that application for re-determination could not be dismissed. There cannot be any doubt with respect to the said position. In the contextual situation the decision in **Balakrishnan** v. **Special Tahsildar (2006 (2) KLT 1000)** assumes relevance wherein this Court held that the production of certified copy of the award of the reference court, applied for and obtained on an application by or on behalf of the applicant under section 28A(1) is relevant only in a case where exclusion of time is sought for relying on the proviso to Section 28A(1) of the Act. It was also held that an application which was filed within the time prescribed under Section 28A could not be rejected on the ground that it was unaccompanied by certified copy of award, applied for and obtained by or on behalf of the person invoking Section 28A of the Act. A perusal of the provisions under Section 28A of the act would reveal that an application under Section 28A ought to be filed within three months from the date of award which is sought to be relied on as the basis of the claim for re-determination and for computing the said WP(C).No.20452/2014 4 period of three months the period from the date of pronouncement of the award and the requisite time for obtaining the award alone could be excluded. Section 28A(1) reads thus:- “ **28A. Re-determination of the amount of compensation on the basis of the award of the Court** .- **(1)** Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, not withstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.” 4. In this case, the award relied on for seeking redetermination of compensation is dated 15.6.2011 and admittedly, Ext.P5 application under Section 28A of the Act was filed by the petitioner only on 30.1.2012. It is evident from the pleadings of the petitioner that he had earlier filed a photocopy of the judgment in LAR WP(C).No.20452/2014 5 No.25 of 2008 and connected cases dated 15.6.2011 and admittedly, he obtained the certified copy of the aforesaid award on 23.11.2011. Once that is evident from the pleadings of the petitioner the factum of missing of the certified copy and the subsequent application for fresh certified copy cannot be brought within the purview of section 28A(1) of the Act or within the scope of the aforementioned decisions. Even then he filed Ext.P5 application along with its photocopy only on 30.1.2012. In fact, in the light of the aforesaid decisions and in view of the proviso to Section 28A(1) of the Act it is evident that the very application was submitted by the petitioner beyond the period prescribed by law viz., only on 23.11.2011. Based on the said fresh copy application he obtained the certified copy of the aforesaid judgment relied on by him on 11.10.2013 and he produced the same before the first respondent only on 15.10.2013. Thus from the factual position as obtained from the averments of the petitioner it is evident that he has not submitted an application within the time stipulated in terms of the proviso to Section 28A(1) of the Act and in such circumstances, he cannot claim the benefit of the decision in **Sahid's** case (supra). A perusal of the proviso to Section 28A of the Act would reveal that statutorily, the date on which the award was pronounced and the time requisite for obtaining the copy WP(C).No.20452/2014 6 of such award alone could be excluded while computing the period of three months. When once the certified copy of the award concerned is obtained the time will run from there and it could not be arrested by the missing of the same, if at all it was missed, or by any other reasons. Therefore, the petitioner is not entitled to seek for exclusion of the time taken for obtaining the certified copy based on the subsequent application produced along with Ext.P9 affidavit. Yet another contention was also taken by the petitioner to the effect that he has submitted an application for condoning the delay assigning the aforesaid reasons in and vide Ext.P9. The question is whether such application for condonation of delay in filing an application under Section 28A could be entertained? The said position is no more _res integra_ in view of the decision in **Popat Bahiru Govardhane and Others** v. **Special Land Acquisition Officer and Another ((2013) 10 SCC 765)** wherein the Hon'ble Apex Court held that in respect of an application under Section 28A of the Act Collector is not a court, but a quasi judicial body and that the principle of limitation starting from the date of knowledge of the award being applicable only to Section 18 and not to Section 28A of the Act. In the case dealt with by the Hon'ble Apex Court though after excluding the permissible period the delay was only two days the Hon'ble Apex Court WP(C).No.20452/2014 7 upheld the decision of the Collector in not condoning the delay as the petition was barred by limitation. In the light of the said decision of the Hon'ble Apex Court the respondents cannot be found fault with in not condoning the delay and as such no writ as sought for could be issued to do what is impermissible in law. In short, I do not find any illegality in Ext.P12 warranting interference. In the said circumstances, this writ petition is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS